Hollis v. Enenmoh, et al.

Filing 12

ORDER DISMISSING 9 First Amended Complaint WITH LEAVE TO AMEND; Amended Complaint due within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 11/25/2014. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY HOLLIS,

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Plaintiff,

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CASE NO. 1:11-cv-01154-MJS
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(ECF NO. 9)
ENENMOH, et al.,

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AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

Defendants.

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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Jeremy Hollis is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action filed pursuant to 42 U.S.C. § 1983.

He has consented to

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Magistrate Judge jurisdiction. (ECF No. 5.)
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On July 31, 2012, Plaintiff‟s Complaint was screened and dismissed, with leave to
amend, for failure to state a cognizable claim. (ECF No. 6.) Plaintiff‟s First Amended

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Complaint (ECF No. 9) is now before the Court for screening.
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II.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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The First Amended Complaint identifies at least eight prison officials as

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Defendants and broadly alleges numerous instances of inadequate medical care and

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other violations of Plaintiff‟s rights. (ECF No. 9.)

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IV.

ANALYSIS

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A.

Section 1983

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Section 1983 “provides a cause of action for the „deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws‟ of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under Section 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is
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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

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B.

Insufficient Pleading

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Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, the complaint or

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amended complaint must contain a “short and plain statement of the claim showing that

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the pleader is entitled to relief.” Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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The First Amended Complaint is not a short and plain statement of Plaintiff‟s claim

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but thirty pages of alternatively vague and specific allegations against an unspecified

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number of Defendants. Plaintiff‟s allegations are so broad and sweeping that the Court

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cannot parse out which claims Plaintiff intends to pursue.

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begins with general assertions about prison medical care and then tries unsuccessfully

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to set out a step-by-step timeline of the events underlying Plaintiff‟s claims.

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allegations go back and forth between very specific examples of misconduct that lack

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context to conclusory or speculative summaries of the Defendants motives.

The amended complaint

The

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For example, on page nineteen, Plaintiff alleges that a Defendant denied him

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adequate pain medication. That brief allegation, which may state a claim, introduces a

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long paragraph where Plaintiff speculates that treatment is being intentionally denied to

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generate prisoner complaints which lead to more funding that is then possibly funneled

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elsewhere.

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Plaintiff‟s exact claims difficult to discern.

Similar digressions occur throughout the amended complaint and make

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The Court simply does not have the time that would be necessary to try to

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organize Plaintiff‟s allegations and determine what claims he is trying to assert against

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whom. Instead, Plaintiff will be given an opportunity to amend. Any amended complaint

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must be a short and plain statement of Plaintiff‟s claims. Plaintiff shall avoid conclusory

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statements and simply allege the facts underlying his claims. Each Defendant and the
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claims against him or her must be clearly identified. The amended complaint should not

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exceed fifteen legible pages.

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standards that may be applicable to Plaintiff‟s intended claims.

The following sections of this order will provide legal

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C.

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Under § 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th

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Cir. 2002). This requires the presentation of factual allegations sufficient to state a

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plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting

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Section 1983 Linkage Requirement

this plausibility standard. Id.

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The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by the

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plaintiff.

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Government officials may not be held liable for the actions of their subordinates under a

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theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official

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cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must

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plead sufficient facts showing that the official has violated the Constitution through his

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own individual actions. Id. at 1948. In other words, to state a claim for relief under §

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1983, Plaintiff must link each named defendant with some affirmative act or omission

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that demonstrates a violation of Plaintiff's federal rights.

See Monell v. Department of Social Services, 436 U.S. 658 (1978).

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D.

Inadequate Medical Care

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to

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medical care, it is violated only when a prison official acts with deliberate indifference to

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an inmate‟s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir.

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2012); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006).

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demonstrating that failure to treat [his] condition could result in further significant injury or

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the unnecessary and wanton infliction of pain,” and (2) that “the defendant‟s response to
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Plaintiff “must show [1] a serious medical need by

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the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d

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1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act or

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failure to respond to a prisoner‟s pain or possible medical need, and (b) harm caused by

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the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096).

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E.

Americans with Disabilities Act

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Title II of the ADA provides that “no qualified individual with a disability shall, by

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reason of such disability, be excluded from participation in or be denied the benefits of

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the services, programs, or activities of a public entity, or be subject to discrimination by

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such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and activities

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provided for inmates by jails and prisons. Pennsylvania Dep‟t of Corr. v. Yeskey, 524

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U.S. 206, 208-13 (1998); Simmons v. Navajo Cnty., 609 F.3d 1011, 1021-22 (9th Cir.

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2010). To establish a violation of Title II of the ADA, a plaintiff must show that “(1) he is

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an individual with a disability; (2) he is otherwise qualified to participate in or receive the

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benefit of some public entity's services, programs, or activities; (3) he was either

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excluded from participation in or denied the benefits of the public entity's services,

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programs, or activities, or was otherwise discriminated against by the public entity; and

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(4) such exclusion, denial of benefits, or discrimination was by reason of [his] disability.”

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Simmons, 609 F.3d at 1021 (quoting McGary v. City of Portland, 386 F.3d 1259, 1265

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(9th Cir. 2004)).

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F.

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“The Fourteenth Amendment‟s Due Process Clause protects persons against

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deprivations of life, liberty, or property; and those who seek to invoke its procedural

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protection must establish that one of these interests is at stake.” Wilkinson v. Austin,

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545 U.S. 209, 221 (2005). Plaintiff does not a have protected liberty interest in the

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processing his appeals, and therefore, he cannot pursue a claim for denial of due

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process with respect to the handling or resolution of his appeals. Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988)).

Inmate Appeals Process

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G.

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Allegations of retaliation against a prisoner‟s First Amendment rights to speech or

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to petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658

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F.3d 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985);

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see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland,

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65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor

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took some adverse action against an inmate (2) because of (3) that prisoner‟s protected

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conduct, and that such action (4) chilled the inmate‟s exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter,

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668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d

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1262, 1269 (9th Cir. 2009).

Retaliation

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H.

State Law Claims

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Under the California Tort Claims Act (CTCA), a plaintiff may not maintain an

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action for damages against a public employee unless he has presented a written claim

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to the state Victim Compensation and Government Claims Board within six months of

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accrual of the action. See Cal. Gov‟t Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v.

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California Pub. Utils. Comm‟n, 67 F.3d 1470, 1477 (9th Cir. 1995). A plaintiff may file a

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written application for leave to file a late claim up to one year after the cause of action

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accrues. Cal. Gov‟t Code § 911.4. The purpose of CTCA‟s presentation requirement is

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“to provide the public entity sufficient information to enable it to adequately investigate

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claims and to settle them, if appropriate, without the expense of litigation.” City of San

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Jose v. Superior Court, 525 P.2d 701, 706 (1974). Thus, in pleading a state law claim,

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plaintiff must allege facts demonstrating that he has complied with CTCA‟s presentation

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requirement. State of California v. Superior Court (Bodde), 90 P.3d 116, 119 (2004).

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Failure to demonstrate compliance constitutes a failure to state a cause of action and will

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result in the dismissal of Plaintiff‟s state law claims. Id.
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Negligence

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“Under California law, „[t]he elements of negligence are: (1) defendant‟s obligation

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to conform to a certain standard of conduct for the protection of others against

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unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a

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reasonably close connection between the defendant‟s conduct and resulting injuries

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(proximate cause); and (4) actual loss (damages).‟” Corales v. Bennett, 567 F.3d 554,

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572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d

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519 (2008) (internal quotations omitted)).

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2.

Medical Malpractice

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“The elements of a medical malpractice claim are: (1) the duty of the professional

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to use such skill, prudence, and diligence as other members of his profession commonly

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possess and exercise; (2) a breach of that duty; (3) a proximate causal connection

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between the negligent conduct and resulting injury; and (4) actual loss or damage

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resulting from the professional‟s negligence.” Avivi v. Centro Medico Urgente Medical

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Center, 159 Cal.App.4th 463, 468, n.2, 71 Cal.Rptr.3d 707, 711 (Cal. Ct. App. 2008)

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(internal quotations and citation omitted).

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V.

CONCLUSION AND ORDER

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Plaintiff‟s First Amended Complaint does not state a claim for relief. The Court

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will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the

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alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at

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1948-49. Plaintiff must set forth “sufficient factual matter . . . to „state a claim that is

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plausible on its face.‟” Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff

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must also demonstrate that each named Defendant personally participated in a

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint

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no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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The Clerk‟s Office shall send Plaintiff a blank civil rights complaint form;

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Plaintiff‟s First Amended Complaint is dismissed for failure to state a claim

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upon which relief may be granted;

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Plaintiff shall file an amended complaint within thirty (30) days; and

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If Plaintiff fails to file an amended complaint in compliance with this order,

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this action will be dismissed, with prejudice, for failure to state a claim and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

November 25, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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